Summary: Mr X complains the Council refused his request for a personal transport budget. This request was to cover the mileage costs of driving his son, F, to and from school. We have decided to uphold Mr X’s complaint because there is evidence of fault in the Council’s decision-making. This caused Mr X uncertainty and confusion. To remedy this, the Council has agreed to apologise to Mr X, make him a payment, retake its decision and make a service improvement.

The complaint

1. The complainant, who I shall refer to here as Mr X, complains the Council wrongly refused his request for a personal transport budget. This request was to cover the mileage costs of driving his son, F, to and from school.
2. Mr X says the Council originally provided a minibus for his son, but his son refused to use this meaning Mr X had to instead drive F to school.
3. Mr X says he is on a low income and is struggling to cover the petrol costs of driving his son to and from school (around 32 miles each day in total). He says this is causing him stress and distress as he is always worried that he will not be able to cover the cost.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke with Mr X about his complaint. I considered the documents and information that Mr X and the Council sent me.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

School transport

Arrangements for eligible children

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘Eligible children’ include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

SEN Transport – reasonable expectations on accompaniment

10. In deciding whether a child of statutory school age cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’, a council will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child.
11. When considering whether a child’s parent can reasonably be expected to accompany the child, a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The expectation is a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so (Department of Education 2014 home to school travel and transport guidance). 

Suitability of arrangements

12. Statutory guidance says that for travel arrangements to be suitable, they must be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. (Department of Education 2014 home to school travel and transport guidance)

Council’s School Transport Policy (2020/21)

13. The Council’s Home to School/College and Adult Learner Transport Policy (2020/21) states:

• travel assistance will be provided for eligible pupils using the most cost effective and suitable means for the child/young person, taking into account their age, any special needs/medical conditions or disabilities and their abilities and the route. Where appropriate this may include: local bus or rail services, or payment of a personal budget or travel allowance.
• the Council is responsible for determining suitable travel assistance/support and will review this on a regular basis to ensure that it continues to meet the needs of the pupil.

Transport appeals

14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
15. It recommends councils adopt the following appeals process:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us. (Annex 2 of the guidance)

What happened

16. Mr X’s son, F, has special educational needs (SEN) and an Education, Health and Care Plan (EHC Plan). F’s EHC Plan says: “Both at home and school, [F] relies on a consistent routine. If the routine changes in some way, [F] will become anxious and will need an adult to help him explain.”
17. During the 2021/22 academic year, F began attending a special school, School One, and moved into Year 7.
18. In June 2021, ahead of F’s transition to School One, Mr X applied to the Council for support with school transport. The application form said it was difficult for the family to transport F to School One. School One was 7.74 miles away by car. Mr X said F was not able to travel by public transport due to his SEN.
19. In mid-August, the Council wrote to Mr X with its decision. It said F was eligible for free travel assistance under its 2020/21 Transport Policy. It confirmed the Council would provide F with a place on a minibus with a shared passenger assistant. It asked Mr X to tell the Council if his circumstances changed.
20. At the end of September, Mr X told the Council he wished to appeal the type of transport provided for F. He said that F was refusing to use the place on the minibus provided so he had cancelled it. Mr X said he used to transport F to his previous school by car and F was desperate for this to continue. Mr X said he had tried several times to persuade F to use the minibus, but F refused and became distressed and upset. Mr X said he had no choice but to cancel the arranged transport. But, as he was on a low income, Mr X said he was struggling to cover the petrol costs. Mr X requested the Council consider awarding a personal travel budget for F instead.
21. A few days later, the Council sent Mr X the outcome of his stage one appeal. It said it refused Mr X’s request for a personal transport budget. The reasons for this were: although F was eligible for free home to school transport, the Council had offered a minibus to meet Mr X’s original request. The Council said this offer was still available. It provided Mr X with details of how to request a stage two appeal.
22. In mid-October, Mr X requested a stage two appeal. He asked the Council to grant a personal travel budget based on F’s needs. He said F was not able to use the minibus so he had no choice but to cancel it.
23. In November, the Council sent Mr X its stage two appeal decision. It upheld the Council’s decision not to provide a personal travel budget. It said:

• the minibus provided was the most cost-effective form of travel assistance.
• School One and F’s family should support F to use the minibus as this would increase his levels of independence. When recommending this, the Council told me it had considered F’s SEN as described in his EHC Plan and the provision in the Plan to help prepare F and reduce his anxiety.

24. In March 2022, Mr X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

25. The complainant, who I shall refer to here as Mr X, complains the Council wrongly refused his request for a personal transport budget. This request was to cover the mileage costs of driving his son, F, to and from school.
26. The Council’s Home to School/College and Adult Learner Transport Policy (2020/21) provides a two-part test for deciding what free travel arrangements may be provided by the Council. This states travel assistance will be provided for eligible pupils using:

• the most cost effective and
• the most suitable means.

27. I have considered the evidence available to me, including Mr X’s original application for travel assistance and the Council’s records of its decision-making. Based on this, I find the Council has considered the most cost-effective form of transport for F. It has decided this to be the minibus. The Council told me the minibus presented no additional costs to the Council as the vehicle had been contracted for a fixed amount and had capacity for F. But, a personal travel budget to cover the mileage costs would come to £301.86 per month.
28. However, in my view, I find the Council has failed to consider what the most appropriate form of transport would be for F taking into account his age and individual needs. This is for the following reasons:

• in the Council’s records of the original decision from August 2021, this shows that the Council agreed to provide travel assistance by way of a minibus. However, it is not clear how the Council considered F’s SEN and assessed this to be the most suitable form of transport for F. Similarly, the records of the stage one and stage two appeals provide no clear reasons as to how, in light of the new information Mr X had provided, the Council assessed the minibus to be more suitable than the payment of a travel allowance. It is not clear how the Council weighed up the suitability of each means of transport. This is fault.
• Mr X has explained that the provision of the minibus caused F distress and upset. F refused to use the minibus. The statutory guidance says for transport to be suitable, it must be “safe and reasonably stress free, to enable the child to arrive at school ready for a day of study”. However, I have seen no evidence the Council considered this requirement of the statutory guidance when considering Mr X’s appeal. This is fault.
• the Council’s Home to School/College and Adult Learner Transport Policy says it has a programme of independent travel training and life skills. All eligible pupils from Year 6 are expected to undertake independent travel training (unless a professional advisor assesses the child and decides the child was unlikely to benefit from this). Based on the evidence seen so far, I find the Council failed to consider or offer this when it first approved the provision of a place on a minibus. Equally, when the Council considered Mr X’s appeal at stage one and two, I have seen no evidence the Council considered whether this training had been offered and, if so, what the outcome of the training was to help inform its decision on suitability. This is fault.

29. Mr X was caused uncertainty and was put to time and trouble due to the fault identified. He missed out on having his requests for a personal travel budget considered in a way that was in line with the Council’s policy and the statutory guidance.

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Agreed action

30. Within four weeks of my final decision, the Council has agreed to:
1. apologise to Mr X for the faults identified above;
2. make a payment of £150 to Mr X for the avoidable and unnecessary uncertainty, time and trouble caused by the fault. I have considered the Ombudsman’s published guidance on remedies when recommending this payment; and,
3. re-take its decision using a fresh appeal panel who has not previously heard Mr X’s case. The Council should clearly record how it has considered F’s SEN and assessed the suitability of the travel arrangements. I cannot say whether this would lead to a different decision. However, in the event the Council decides a personal travel budget to cover the costs of mileage is the most suitable and cost-effective form of travel, it should consider backdating Mr X’s personal travel budget to the end of September 2021 when he first requested this.
31. Within three months of my final decision, the Council has also agreed to:

• review its Home to School/College and Adult Learner Transport Policy to ensure it is clear to staff that the cost and suitability assessment of school transport arrangements should be clearly recorded. There should be clear guidance on the statutory guidance’s requirement that for travel arrangements to be suitable, Council staff must be satisfied the travel arrangement is “safe and reasonably stress free, to enable the child to arrive at school ready for a day of study”.

32. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

33. I have completed my investigation.
34. I have decided to uphold Mr X’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman